An estimated 65 million Americans have a criminal record. If you are one of them, searching for a job could be tough. Surveys show that a majority of employers – 92%, according to one recent survey – check criminal records when hiring for some or all positions. If a prospective employer finds out that you have an arrest or conviction record, you might find it difficult to compete in today’s tight job market.
Job seekers with criminal records have some legal rights. Federal and state laws place some limits on how employers can use these records in making job decisions. New Jersey law gives applicants some protection in this situation, too.
Federal Protections for Applicants With a Criminal Record
There are two federal laws that provide some protections for applicants with criminal records.
Title VII: Discrimination Based on Criminal Records
Title VII of the Civil Rights Act of 1964 prohibits discrimination in every aspect of employment, including screening practices and hiring. Because arrest and incarceration rates are so much higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.
The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. In deciding whether a particular offense should be disqualifying, employers must consider:
- the nature and gravity of the criminal offense or conduct
- how much time has passed since the offense or sentence, and
- the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).
The EEOC also has said that employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.
The Fair Credit Reporting Act: Inaccurate Records
The Fair Credit Reporting Act (FCRA) addresses the issue of accuracy. It’s bad enough to be turned down for a job based on your actual criminal record, but some people are rejected because their criminal background check contains another person’s crimes or erroneously includes sealed records or charges that were dropped. Criminal background checks may include errors, such as incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, information on convictions that have been expunged, multiple listings of the same offense, and even records that belong to someone else entirely.
The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers must:
- Get the applicants written consent ahead of time.
- Inform the applicant if the employer intends to disqualify him or her based on the contents of the report. The employer must also give the applicant a copy of the report.
- Notify the applicant after the employer makes a final decision not to hire him or her based on the information in the report.
The FCRA also imposes obligations on firms that run background checks for employers. They must take reasonable steps to make sure that the information they provide is accurate and up to date. If an applicant disputes the contents of the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform the applicant and any other person or company to whom it has provided the report.
New Jersey Law on Use of Criminal Records
New Jersey law gives employers the right to obtain information about convictions and pending arrests or charges to determine an applicant’s qualifications for employment. To get this information, the employer must certify that it will give the applicant adequate notice and reasonable time to confirm or deny the accuracy of the information before taking adverse action. The employer must also provide sufficient time for the applicant to correct or complete the record, and may not presume that the applicant is guilty of any pending arrests or charges.